Enough with the bad faith about Huawei.

Any discussion of Huawei relating to the Chinese “National Intelligence Law” has to start out from the recognition that all states, always, have tried to weaponize telecommunications systems and have taken considerable legal powers over people and property involved, even where they didn’t create the assets and organizations themselves. Take a look at Section 94, paragraph 2 of the UK’s Telecommunications Act 1984, the founding document of the post-monopoly industry in the UK:

If it appears to the Secretary of State to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside the United Kingdom, he may, after consultation with a person to whom this section applies, give to that person a direction requiring him (according to the circumstances of the case) to do, or not to do, a particular thing specified in the direction.

That’s right – S94 permitted any cabinet-level minister, literally all of them, to order anyone who worked for a telco to do, or refrain from doing, literally anything, so long as the minister thought it useful for national security or foreign affairs.

Paragraph 4 gave the whole thing a figleaf of democratic accountability by requiring the government to send a copy of each and every direction under S94 to Parliament. However, it also then ripped the figleaf away, providing that the government would be exempt from this on precisely the same conditions that gave it the right to issue the order in the first place. Shamefully, it also let the government keep stumm if it might hit the price of BT shares.

The Secretary of State shall lay before each House of Parliament a copy of every direction given under this section unless he is of opinion that disclosure of the direction is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of any person.

And Paragraph 5 specifically requires anyone under such a direction to take the secret to the grave, even if they are legally required to disclose it:

A person shall not disclose, or be required by virtue of any enactment or otherwise to disclose, anything done by virtue of this section if the Secretary of State has notified him that the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of some other person.

Paragraph 8, astonishingly, makes clear the fearsome power of Paragraph 2 is not even limited to your work in the industry:

This section applies to the Director and to any person who is a public telecommunications operator or approved contractor (whether in his capacity as such or otherwise); and in this subsection ” approved contractor ” means a person approved under section 20 above

This last bit reminds me of the click-through EULA that recruits people into the secret service in Charlie Stross’s novel Halting State and I wonder if it’s where Charlie got the idea.

But we’re all good chaps here in democracy, no? We wouldn’t actually use this until the balloon goes up? Well, the problem is that we did.

While the political nation was arguing over RIPA I through III, the Communications Data Bill, the “Snooper’s Charter” Investigatory Powers Act, and much else, the government didn’t bother to use RIPA powers when they could just hand out S94 notices without telling anyone. The whole apparatus of post-September 11th surveillance, and Britain’s enthusiastic participation in the NSA’s drive to “just collect it all” right down to the Queen’s selfies to the poolboy, in Edward Snowden’s memorable phrase, was legally founded on S94.

They actually went one better than not telling a soul – they avoided keeping records, so when David Cameron asked the interception commissioner to take a look, he reported that he couldn’t supervise S94 because there were no records he could review.

The challenges stem from the fact that the directions are secret as allowed for by statute, can be given by any Secretary of State and do not automatically expire after a certain period. There does not appear to be a comprehensive central record of the directions that have been issued by the various Secretaries of State. My office is therefore not yet in a position to be able to say confidently that we have been notified of all directions

In fact, the commissioner was himself banned from talking about the only S94 direction he actually did supervise because it was secret under Paragraph 5!

My office previously provided limited non-statutory oversight of the use made of one particular set of section 94 directions. This oversight was limited because it was only concerned with parts of c) above. My office was, and still is, prohibited from saying any more about this oversight as the Secretary of State is of the opinion that disclosure would be against the interests set out in section 94(5) of the Telecommunications Act.

(They later did get some information.) Hilariously, a major motivation for the Investigatory Powers Act 2016, bad as it is, was precisely that it was at least less despotic than the positively tyrannical S94.

It should come as no surprise that the British officials responsible for the Huawei security reviews have always assumed China had the powers in the National Intelligence Law and it therefore makes no difference. After all, they wielded the same ones themselves at all relevant times.

Disclosure: I recently worked on a consulting project for Huawei, although I received nothing over or above my usual salary.